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DINK REPORT VS. MÄ°T LEGISLATION
Today's Zaman
Feb 21 2012
Turkey
Turkey has many laws that vest public officials with immunity from
judicial review. One might suggest that these laws and special
regulations are needed for the continuation of the functioning of
the state mechanism.
However, as the immunity shields public officials have get stronger,
the system is becoming less and less a state governed by the rule
of law where everyone is treated equally before the law and everyone
accounts for their deeds in court, irrespective of their positions. It
is a serious source of concern that the system of immunity has recently
started to expand, although it is expected to diminish due to criticism
that it is already covering too many people and areas. The politicians
who promised to introduce transparency and accountability at the
election rallies are now acting quite contrary to their promises,
which further reinforces these concerns.
Despite the sheer number of legislation that must be prioritized --
such as the drafting of a new civilian constitution that will catapult
Turkey to higher standards in fundamental rights and freedoms or
the passing of numerous bills to ensure harmonization with the legal
system of the constitutional amendments ratified in the referendum held
on Sept. 12, 2010 -- the ruling Justice and Development Party (AKP)
passed amendments to the match-fixing law and the National Intelligence
Organization (MÄ°T) law posthaste. This has certainly created in the
public the perception that the alleged illegal activities of certain
people and institutions are being protected against due process of
law. The practical aspects of the MÄ°T bill aside, the government has
come to be perceived as suffering from a dangerous shift that is in
stark contrast to the principle of rule of law.
Fortunately, not all actors or components of the state are on the
wrong track. The AKP government has just passed a bill to reinforce the
immunity certain public officials already have, and the Presidency's
State Audit Institution (DDK) issued a report on the investigations
concerning the murder of Turkish-Armenian journalist Hrant Dink,
who was shot dead in Ä°stanbul on Jan. 19, 2007. This report clearly
shows why this MÄ°T bill is a flawed attempt.
The 650-page DDK report, also sent to the Prime Ministry and Ä°stanbul
Chief Prosecutor's Office, reads: "Although the person who shot Dink
dead was apprehended shortly after the murder, the investigation
and prosecution processes were not conducted as effectively and
swiftly due to certain systemic problems. For this reason, the
general public and the Dink family have not been satisfied with the
investigations/prosecutions conducted by administrative and judicial
authorities. In particular, the general criticism is that the public
officials who were allegedly involved in the murder of Dink were not
tried, and the people who masterminded the murder were not found. On
the other hand, in Dink v. Turkey, the European Court of Human Rights
(ECtHR) ruled on [Dec. 14, 2010], that Turkey failed to protect the
applicant's right to life and breached the right to fair trial and
didn't conduct an effective investigation for the protection of the
right to life and failed to provide effective remedies. Accordingly,
the negligence of public officials was substantiated, and the
criticisms that the public officials who failed to prevent the murder
were being protected increased, and this made the nature and outcome
of the administrative investigations dubious."
The DDK report also criticizes the immunity afforded to public
officials against legal processes. Referring to two basic systems
for investigating and prosecuting public officials, it explains that
in the judicial guarantee system, the investigation and prosecution
concerning public officials' offenses related to their duties are
completely conducted by judicial authorities according to general
provisions. Indeed, in this system, the judiciary is considered a
"guarantee" for public officials as it is for other members of the
society, the report adds. In the administrative guarantee system,
it notes, a public official is considered a state representative.
"Therefore, the state tends to protect those people who perform state
services... The state protects the bureaucracy that represents its
sovereignty with laws and endows its servants with privileges... In
sum, the administrative guarantee system has been developed in
countries with a central state structure out of concerns for
the protection of the administration and public servants as its
representatives in parallel to the development of the administrative
law," it says.
The report also makes some recommendations to the decision-makers
concerning the prosecution of public officials. "The system that
requires prosecutors to ask for the permission of the administration
to launch a judicial investigation on public officials facing
certain charges is currently being implemented so broadly that this
undermines the public's sense of justice and cannot be reconciled
with contemporary legal norms. In this regard, a method should be
developed to eliminate the current inconveniences of the judicial
guarantee system and to ensure greater harmony with contemporary
legal norms," it suggests.
The report also stresses the legal fuzziness concerning the prosecution
of public officials and notes that Turkey has rich experience in
cases like the murder of Dink. As examples, it refers to the murder
of Christian missionaries at the Zirve publishing house in Malatya,
the murder of priest Andrea Santoro in Trabzon, the Cage (Kafes) action
plan, the cases against Ergenekon -- a clandestine organization nested
within the state trying to overthrow or manipulate the democratically
elected government -- the Revolutionary Headquarters, Odatv -- which
is accused of acting as a media outlet to propagate the cause of an
organization that attempted to forcibly overthrow the government -- the
Sledgehammer (Balyoz) action plan, the Anti-reactionaryism Action Plan,
the bombing of a bookstore in Å~^emdinli, the Council of State attack
and the unsolved murders. The report mentions there are claims against
public officials in these cases. "It is a must that the whole incident,
including how Dink was 'otherified' and made a target and threatened,
should be investigated, and certain negligent and other acts of public
officials, before and after the murder, should be investigated and
prosecuted directly by judicial authorities as part of the main case."
At a time when a potential pruning of the powers and authorities
of specially authorized courts and prosecutors has started to be
discussed in the circles close to the government after judicial
authorities attempted to investigate the controversial relations
between some MÄ°T members and the terrorist Kurdish Communities Union
(KCK), the DDK report completely negated these arguments. Indeed,
this report reveals the saddening fact that specially authorized
courts and prosecutors are incapacitated in their efforts to collect
evidence against public officials who allegedly acted negligently
in the murder of Dink. In other words, it underlines that the powers
and authority of specially authorized courts and prosecutors are not
as broad or extensive as claimed, but fall short of enabling them to
effectively investigate the offenses attributed to public officials.
From: Emil Lazarian | Ararat NewsPress
Today's Zaman
Feb 21 2012
Turkey
Turkey has many laws that vest public officials with immunity from
judicial review. One might suggest that these laws and special
regulations are needed for the continuation of the functioning of
the state mechanism.
However, as the immunity shields public officials have get stronger,
the system is becoming less and less a state governed by the rule
of law where everyone is treated equally before the law and everyone
accounts for their deeds in court, irrespective of their positions. It
is a serious source of concern that the system of immunity has recently
started to expand, although it is expected to diminish due to criticism
that it is already covering too many people and areas. The politicians
who promised to introduce transparency and accountability at the
election rallies are now acting quite contrary to their promises,
which further reinforces these concerns.
Despite the sheer number of legislation that must be prioritized --
such as the drafting of a new civilian constitution that will catapult
Turkey to higher standards in fundamental rights and freedoms or
the passing of numerous bills to ensure harmonization with the legal
system of the constitutional amendments ratified in the referendum held
on Sept. 12, 2010 -- the ruling Justice and Development Party (AKP)
passed amendments to the match-fixing law and the National Intelligence
Organization (MÄ°T) law posthaste. This has certainly created in the
public the perception that the alleged illegal activities of certain
people and institutions are being protected against due process of
law. The practical aspects of the MÄ°T bill aside, the government has
come to be perceived as suffering from a dangerous shift that is in
stark contrast to the principle of rule of law.
Fortunately, not all actors or components of the state are on the
wrong track. The AKP government has just passed a bill to reinforce the
immunity certain public officials already have, and the Presidency's
State Audit Institution (DDK) issued a report on the investigations
concerning the murder of Turkish-Armenian journalist Hrant Dink,
who was shot dead in Ä°stanbul on Jan. 19, 2007. This report clearly
shows why this MÄ°T bill is a flawed attempt.
The 650-page DDK report, also sent to the Prime Ministry and Ä°stanbul
Chief Prosecutor's Office, reads: "Although the person who shot Dink
dead was apprehended shortly after the murder, the investigation
and prosecution processes were not conducted as effectively and
swiftly due to certain systemic problems. For this reason, the
general public and the Dink family have not been satisfied with the
investigations/prosecutions conducted by administrative and judicial
authorities. In particular, the general criticism is that the public
officials who were allegedly involved in the murder of Dink were not
tried, and the people who masterminded the murder were not found. On
the other hand, in Dink v. Turkey, the European Court of Human Rights
(ECtHR) ruled on [Dec. 14, 2010], that Turkey failed to protect the
applicant's right to life and breached the right to fair trial and
didn't conduct an effective investigation for the protection of the
right to life and failed to provide effective remedies. Accordingly,
the negligence of public officials was substantiated, and the
criticisms that the public officials who failed to prevent the murder
were being protected increased, and this made the nature and outcome
of the administrative investigations dubious."
The DDK report also criticizes the immunity afforded to public
officials against legal processes. Referring to two basic systems
for investigating and prosecuting public officials, it explains that
in the judicial guarantee system, the investigation and prosecution
concerning public officials' offenses related to their duties are
completely conducted by judicial authorities according to general
provisions. Indeed, in this system, the judiciary is considered a
"guarantee" for public officials as it is for other members of the
society, the report adds. In the administrative guarantee system,
it notes, a public official is considered a state representative.
"Therefore, the state tends to protect those people who perform state
services... The state protects the bureaucracy that represents its
sovereignty with laws and endows its servants with privileges... In
sum, the administrative guarantee system has been developed in
countries with a central state structure out of concerns for
the protection of the administration and public servants as its
representatives in parallel to the development of the administrative
law," it says.
The report also makes some recommendations to the decision-makers
concerning the prosecution of public officials. "The system that
requires prosecutors to ask for the permission of the administration
to launch a judicial investigation on public officials facing
certain charges is currently being implemented so broadly that this
undermines the public's sense of justice and cannot be reconciled
with contemporary legal norms. In this regard, a method should be
developed to eliminate the current inconveniences of the judicial
guarantee system and to ensure greater harmony with contemporary
legal norms," it suggests.
The report also stresses the legal fuzziness concerning the prosecution
of public officials and notes that Turkey has rich experience in
cases like the murder of Dink. As examples, it refers to the murder
of Christian missionaries at the Zirve publishing house in Malatya,
the murder of priest Andrea Santoro in Trabzon, the Cage (Kafes) action
plan, the cases against Ergenekon -- a clandestine organization nested
within the state trying to overthrow or manipulate the democratically
elected government -- the Revolutionary Headquarters, Odatv -- which
is accused of acting as a media outlet to propagate the cause of an
organization that attempted to forcibly overthrow the government -- the
Sledgehammer (Balyoz) action plan, the Anti-reactionaryism Action Plan,
the bombing of a bookstore in Å~^emdinli, the Council of State attack
and the unsolved murders. The report mentions there are claims against
public officials in these cases. "It is a must that the whole incident,
including how Dink was 'otherified' and made a target and threatened,
should be investigated, and certain negligent and other acts of public
officials, before and after the murder, should be investigated and
prosecuted directly by judicial authorities as part of the main case."
At a time when a potential pruning of the powers and authorities
of specially authorized courts and prosecutors has started to be
discussed in the circles close to the government after judicial
authorities attempted to investigate the controversial relations
between some MÄ°T members and the terrorist Kurdish Communities Union
(KCK), the DDK report completely negated these arguments. Indeed,
this report reveals the saddening fact that specially authorized
courts and prosecutors are incapacitated in their efforts to collect
evidence against public officials who allegedly acted negligently
in the murder of Dink. In other words, it underlines that the powers
and authority of specially authorized courts and prosecutors are not
as broad or extensive as claimed, but fall short of enabling them to
effectively investigate the offenses attributed to public officials.
From: Emil Lazarian | Ararat NewsPress